Memorandum by the Royal College of Nursing
1. INTRODUCTION
1.1 With a membership of over 360,000 registered
nurses, midwives, health visitors, nursing students, health care
assistants and nurse cadets, the Royal College of Nursing (RCN)
is the voice of nursing across the UK and the largest professional
union of nursing staff in the world. RCN members work in a variety
of hospital and community settings in the NHS and the independent
sector. The RCN promotes patient and nursing interests on a wide
range of issues by working closely with Government, the UK parliaments
and other national and European political institutions, trade
unions, professional bodies and voluntary organisations. The RCN
has 4,000 stewards and safety representatives and learning reps
in membership.
1.2 The RCN will be responding to the European
Commission's consultation on the Working Time Directive but in
the meantime would like to submit the following evidence on the
main points of the consultation. We would be happy to give additional
oral evidence if the Committee would find that useful.
2. REFERENCE
PERIODS USED
FOR DETERMINING
THE WORKING
WEEK
2.1 Healthcare does not experience the same
degree of peaks and troughs in demand for its services as for
example the hotel and catering industry. The Whitley Council agreement
to implement the Working Time Regulations identified the standard
reference period of 17 weeks with the opportunity to extend this
by local agreement. We have no evidence of a need to vary the
length of the reference period except in relation to nursing agencies
where the nature of the work and the availability of nurses can
lead to a need for greater flexibility in calculating the average
hours worked per week, which should be subject to workforce agreement.
As identified in the European Commission's Communication, the
UK reproduced the requirements of the Directive in relation to
the reference period and we see no reason for a change in this
provision.
3. THE USE
OF THE
INDIVIDUAL OPT-OUT
BY THE
UK AND OTHER
MEMBER STATES
3.1 Healthcare suffers from a shortage of
skilled professionals—doctors and nurses in particular.
However the solution to this shortage does not lie in the requirement
for existing staff to work long hours. This becomes counter productive
as staff become worn out and their health is affected, leading
to absence from work. The RCN's membership survey for 2003,[9]
in which 10,000 nurses were questioned, reveals some information
about the level of hours worked by nurses:
— The average number of total hours
worked by nurses is 44 per week. This includes work in additional
jobs.
— Minority ethnic nurses and those
who have been recruited from overseas in the last three years
work an average of 47 hours per week.
— Nurses working in the independent
sector averaged 48 hours per week.
— 58 per cent of nurses work overtime
and 26 per cent have additional jobs.
3.2 The survey reveals that 56 per cent
of respondents feel they are under too much pressure at work with
just 26 per cent reporting there are enough staff to provide a
good standard of care. The RCN's membership survey for 2002[10]
reported that 15 per cent of nurses in the NHS worked more than
50 hours per week with the overall average the same as in 2003
at 44 hours per week. It is clear that staffing arrangements are
not enough to meet workload demands.
3.3 Such long hours raise health and safety
concerns for the employees themselves, and could potentially put
patients at risk if nurses are suffering from fatigue.
3.4 The RCN supports the removal of the
opt-out from the Working Time Directive and believes that an average
of 48 hours should be the maximum permitted. The main reasons
for this are health and safety and the need for work life balance.
3.5 In addition we believe that the rules
around the opt-out are not always rigorously applied by employers.
Although we have no quantifiable evidence of the number of NHS
trusts who require employees to sign opt-out agreements, we have
informal feedback that the monitoring of hours and record keeping
where nurses work more than 48 hours does not comply with the
regulations. An exception is nursing agencies where, given the
flexible nature of the work, nurses may work beyond the average
48 hours. For many agency nurses long hours are worked for limited
periods for personal reasons. Agencies must ensure that the opt-out
is agreed and that accurate records are kept.
3.6 We are aware of the potential financial
impact on individual nurses of the removal of the opt-out. The
main motivation for working additional hours and taking second
jobs for nurses is financial. Nearly 68 per cent of nurses are
key breadwinners in their family, contributing to at least half
of their total household income. The level of nurses' pay has
been inadequate and has clearly been a driver for nurses to find
ways of topping up their income. However the current NHS pay modernisation
project, Agenda for Change, may go some way to fairer rewards
for nurses.
3.7 Another concern over the removal of
the opt-out is the availability of staff to provide the service
and this does provide a major challenge for health care. The combination
of the UK regulations in relation to junior doctors' working hours,
the SiMAP and Jaeger European Court of Justice judgements
and the potential removal of the opt-out could be major obstacles
to the capacity of a workforce that can successfully deliver patient
care. However, a number of key initiatives have been taking place
with 20 pilot sites in England which have been developing new
ways of working which will ensure compliance with the UK regulations
on working time. A number of these are now demonstrating savings
in junior doctors' time through the development of new roles.
These have a significant impact on nursing, as in many cases it
is nurses who are taking over some of the work previously carried
out by junior doctors, particularly at night. The pilots have
also identified barriers to such initiatives, for example restrictions
on nurse prescribing.
3.8 The pilots suggest that with partnership
working, staff involvement and agreement and, where appropriate,
collective bargaining it is possible to deliver improved patient
care through new ways of working and negotiation on working patterns.
Rolling out these approaches across the NHS will require significant
investment in training and changes in attitude of professional
groups to their traditional roles.
4. THE DEFINITION
OF WORKING
TIME
4.1 The decisions of the European Court
of Justice (ECJ) in relation to the definition of working time
mean that an increase in the number of staff in some areas will
be required. There is no ready supply of trained nursing staff
to meet existing shortages, let alone an increase in demand. One
example of the challenges for nursing is how "sleep ins"
can be covered. In learning disability/mental health units in
the community, staff are needed 24 hours per day. Within the Whitley
Council agreement, sleep ins are already regarded as working time
but any employer covering two sleep ins per week at 10 hours each
in addition to contracted hours results in an average 57.5 hours
per week. This must be considered in drawing up staffing rotas
and in workforce planning. The ECJ's decisions rightly do not
allow for any flexibility so that any time spent at the workplace
when the employee is available for work must count as working
time.
4.2 A further difficulty in calculating
working time for nursing is where care is provided 24 hours a
day in a client's home with "live in" nurses, normally
by a private nursing agency. In order to maintain health and safety
standards and to allow a work life balance the current definition
of working time, which includes this "live in" time,
should be maintained. This may require fundamental changes to
the methods of planning working patterns. It would entail including
the on call periods as part of a normal rostering pattern and
not making them additional shifts. This is already the practice
in some Scandinavian countries. It has been implemented to some
extent in the UK where theatre staff are no longer required to
work on call but a separate team is employed for emergency work.
In the short term this would create added demands for staff resources
and any changes would need a lead in time for implementation.
This approach would reduce the working time currently required
from UK health care staff.
4.3 The RCN would also like clarity on the
issue of compensatory rest and how this is applied. The requirement
for 11 hours consecutive rest in every 24 hours cannot be always
applied in the hospital sector, for example due to concurrent
late and early shifts. The change in shift pattern can mean that
the breaks between shifts are less than 11 hours. There is confusion
over the interpretation of compensatory rest when the rest breaks
cannot be taken. It is unclear whether compensatory rest should
be another 11 hour period, or the difference between 11 hours
and the actual time of rest. Clarification would be useful.
5. ENSURING COMPATIBILITY
BETWEEN WORK
AND FAMILY
LIFE
5.1 Nursing is a female dominated workforce
with many nurses having significant dependant caring responsibilities.
55 per cent of nurses have children living with them and 18 per
cent have other caring responsibilities so working patterns and
hours are of central importance. The RCN's working well survey
(2002)[11]
reported that 33 per cent of all nurses are not working the shift
pattern they would like to. Those nurses working rotating shifts
are less likely to be satisfied with their shift pattern than
those working other patterns.
5.2 In England initiatives such as improving
working lives have encouraged NHS Employers to adopt more flexible
approaches to working patterns but best practice is not universally
available. The RCN believes that a revision of the EWTD should
provide the opportunity to require greater flexibility in the
choice of working hours and in the choice of shift patterns.
February 2004
9 Ball, Pike Stepping stones: results form the
RCN membership survey 2003, RCN 2004. Back
10
Ball, Pike Valued equally? results from the RCN membership
survey 2002, RCN 2003. Back
11
Working well? Results from the RCN Working well survey into
the wellbeing and working lives of nurses, RCN 2002. Back
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